THROUGH THE LOOKING GLASS: The Experiences of Unrepresented Abused Women in Family Court
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Appendix 2
THROUGH THE LOOKING GLASS:
The Experiences of Unrepresented Abused Women
in Family Court
FINAL REPORT AND RECOMMENDATIONS
Completed by Luke’s Place Support and Resource Centre for The Denise House
Funded by Ontario Victim Services Secretariat, Ministry of the Attorney General
March 2008Table of Contents
Introduction 4
Setting the Context 6
The Focus Groups 15
Women Survivors 15
Community Advocates 21
Community Legal Workers 25
Lawyers 27
Judges 29
Analysis 32
Recommendations 37
Conclusion 41
Endnotes 42
2It takes all the running you can do
to keep in the same place.i
3INTRODUCTION
For women without legal representation their experience in family court is not
unlike Alice’s experiences through the looking glass. They, like Alice, feel that
they are running and running, only to stay in the same place if not move
backwards.
As Alice said when she first looked through the mirror: “First, there’s the room
you can see through the glass – that’s just the same as our drawing room, only
the things go the other way. I can see all of it when I get up on a chair – all but
the bit behind the fireplace. Oh! I do so wish I could see that bit!”ii
Women who are forced to find their own way through the maze of family law and
family court often find that things seem backwards or upside down or inside out.
They search and search for that one elusive bit that they think will make sense of
everything else, that everyone else seems to know about, but they seldom find it.
As two of the women who were part of this project’s focus groups told us:
The court system is so long with all of those procedures and you have to file
these papers and there are too many procedures.
[You] walk into the family court and you feel strangled and you hit a brick wall
and someone is stepping on your throat.
Increasing numbers of people, in particular women, find themselves in family
court with little or no legal representation. They are expected to figure out for
themselves what lawyers and judges spend years studying and practicing, to fill
out endless forms correctly and file them on time, to appear in court and make
complicated legal arguments, to understand the rules of evidence, and to do all
that while maintaining a pleasant and cooperative attitude.
For most, it is like trying to speak a new language with no chance to learn it first.
A 1996 British Columbia study noted: “Few of us in this society are
knowledgeable about how the legal system works. People who are new to the
country are at a particular disadvantage. So are people who are marginalized by
poverty or by this society’s racism or heterosexism or discrimination on the basis
of ability. When circumstances bring us into contact with the system, we usually
count on a lawyer to help us find our way through it.”iii
Difficult enough under any circumstances, the task becomes all but impossible
for women who are fleeing abusive relationships. In addition to the challenges
faced by any non-lawyer representing herself, abused women must deal with:
¾ fear of their abuser, without the protective shield offered by having a
lawyer
4¾ insecurity and lack of self-confidence brought on by the years of abuse
¾ safety concerns for themselves and their children
¾ lack of understanding of violence against women by many in the court
system
¾ lack of appropriate services and supports
¾
This project was undertaken to learn more about the needs of abused women in
Durham Region who are unrepresented through their family court experiences in
order to be able to better develop and support appropriate services for them.
According to the most recent statistics available from Durham Region Superior
Court from January to July 2006, the total number of applications filed under the
Family Law Act, the Children’s Law Reform Act and the Divorce Act were 4,100.
Of these, 2,662 parties were unrepresented – a total of 64.9% of all family court
litigants.
According to a research study of Unified Family Court sites in Ontario, between
2001 and 2006, Oshawa experienced a steady increase in the number of Family
Court applications, reaching a total of 5,300 applications in 2005/06. Oshawa
ranked second only to Ottawa in the increase in number of applications. As well,
Oshawa had the highest total number of “events” (trials, pre-trials, settlement
conferences, motions and case conferences) heard over those 5 years –
11,200.iv
The primary purpose, as set out in the project proposal, is “the completion of a
needs assessment/gaps analysis of service delivery for abused women who are
without legal representation within the family law process. . . [the project] will
gather information about the frequency, causes, difficulties and needs of
unrepresented women with specific attention to marginalized women, women in
ethno-racial communities, rural women and Deaf and disabled women.”
Information and data were gathered by way of focus groups with a variety of
stakeholders: women survivors of violence who were or are unrepresented in
family court, community workers, legal support workers and lawyers as well as
through interviews with family court judges. In addition, all focus group
participants and interview subjects completed a detailed questionnaire.
This data was assessed and analyzed for common themes to support the
development of recommendations, which appear at the end of this report.
We have created an Appendix that sets out issues that go beyond the scope of
this project, including the role of women’s advocates, legal bullying, the
appropriate place of legal self-help materials and services and related but
separate issues that have an impact on women’s experiences in family court.
5SETTING THE CONTEXT
In order to set the context, this report begins with a look at the reality of violence
against women, work done by the Domestic Violence Death Review Committee
of the Office of the Chief Coroner of Ontario, historic and recent law reform
initiatives and provincial public policy initiatives, before moving on to examine the
research and recommendations of this project.
.
While the focus of this project is on women’s experiences in family court, we also
present information about recent policy initiatives in criminal court that relate to
woman abuse. Women’s court experiences are not neatly parceled into “family”
and “criminal.” They are, rather, one big messy experience of “going to court.”
As the women told us, they are frustrated by the lack of communication and
coordination between the two courts and, sometimes, even find orders from one
conflict with orders from the other. A woman’s abuser may try to “trade off” what
happens in one court with the other. For example, it is not uncommon for a
woman whose husband has been criminally charged to have him promise to
“give” her custody if she will have the criminal charge against him dropped.
The information we provide about criminal court serves to further enrich the
context in which women experience family court.
The Reality of Violence Against Women
Violence against women, often called domestic violence, family violence or,
increasingly, intimate partner violence (IPV), remains a serious and entrenched
social problem in Durham Region, in Ontario, in Canada and around the world.
It’s the world’s most pervasive human rights violation. It’s the violation most often
ignored. Every minute of every day, women and girls around the world are
assaulted, threatened, raped, mutilated, killed.v
While great strides have been made to increase services to victims of woman
abuse and their children, the sad reality is that levels of male violence against
women remain as high as ever. Indeed, the numbers of women and children
killed by men who say they love them are shockingly high.
In an important new book called The War on Womenvi, author Brian Vallee
compares the numbers of murdered women to the numbers of police and military
deaths:
In the seven years between 2000 and 2006, there were 101 deaths of
Canadian military and law enforcement personnel. In the same period of
time, more than 500 women were killed by their partners or former
partners.vii
As Vallee says: “There is another war – largely overlooked but even more deadly
– with far more victims killed by “hostiles.” But these dead are not labeled heroes,
6nor are they honoured in the national media or informal ceremonies. From time to
time they may attract a spate of publicity as the result of a high-profile trial, or an
inquest that will likely conclude that society let them down once again and
recommend changes to prevent future deaths, though these recommendations
will be mostly ignored. This war is the War on Women.”viii
These fatality numbers are serious and cause for much concern. However, the
numbers of women and children who use the services of battered women’s
shelters and the even higher numbers of women and children who simply remain
in abusive homes is perhaps of even greater concern.
To quote Brian Vallee again: “Wars usually produce large numbers of refugees:
witness the United Nations camps scattered around the world. And the War on
Women has its own refugee camps, in the form of the 2,500 or so shelters for
battered women across North America . . . In Canada, the number [of women
and children using shelters] is between 90,000 and 100,000 [a year].”ix
Here are some of the numbers:
• globally, at least one of every three women reports being beaten,
coerced into sex or otherwise abused in her lifetime, usually by a
member of her family or someone known to her (Amnesty
International)
• the Council of Europe has stated that domestic violence is the
major cause of death and disability for women between the ages of
16 and 44 (Amnesty International)
• only 79 countries have laws against domestic violence and only 16
have laws against sexual assault (Amnesty International) and, even
in those countries, appropriate charging and prosecution remain a
challenge for many women, especially those marginalized by race,
immigration status, class, disability or age
• in Canada, in 1998, approximately 80% of victims in reported cases
of sexual assault were women and 98% of the accuseds were men
(Juristat, Canadian Crime Statistics)
• Women constitute 88% of all reported spousal violence victims in
Canada (Family Violence in Canada: Statistical Profile, 1999)
• Violence often escalates after separation (Canadian Social Trends,
Statistics Canada)
• Young women under 25 years of age are at greatest risk of spousal
homicide in Canada (Family Violence in Canada)
• There are 543 shelters providing services to battered women and
their children in Canada
• In 2003/04, 58,486 women and 36,840 dependent children spent
time in battered women’s shelters in Ontario. Of these, 40% had
been in a shelter in the previous year and 38% had used a shelter
two to four times previously. One-third of the women using shelters
were between the ages of 24 and 35. (Juristat: Canada’s Shelters
7for Abused Women, reported in Statistics Canada’s publication,
The Daily on June 15, 2005)
• The statistics for 3 of the 4 Durham area shelters report that during
2006/07, 664 women and children used their residential services,
1,069 women received outreach services and 5,117 made crisis
calls to shelters. The fourth area shelter was not able to provide
statistics for 2006/07 at the time of this report. (Durham Region
Shelter statistics collected to reflect their client services in 2006/07)
• In 2006, 4,401 domestic violence incident reports (366 per month)
were filed by Durham Regional Police Services. Of these, 1,148 led
to a criminal charge being laid; 83.4% against men
• In the first nine months of 2007, 3,646 incident reports (405 per
month) were filed. 1,169 were charged with a criminal offence,
81.4% of these against men
• These figures show that more charges were laid in the first nine
months of 2007 than in all of 2006
• Since 1995, 271 women and 45 children have been killed in Ontario
as a result of domestic violence. The figures for 2006 are
particularly high showing 27 women and 12 children killed as a
result of domestic violence in that year alone. (OAITH report on
Women/Children Murdered Since June, 1995)
• Only approximately 28% of women report spousal assault to the
police
It is also worthy of note that, according to Amnesty International, violence against
women in Canada costs approximately $4.2 billion/year, including the costs of
police and government services, medical care and lost productivity.
Findings of the Coroner of Ontario’s Domestic Violence Death Review
Committee
As the result of one of the recommendations made by the jury in the inquest into
the murder of Gillian Hadley by her estranged husband, Ralph Hadley, the Office
of the Coroner of Ontario established the Domestic Violence Death Review
Committee (DVDRC).x The Committee’s mandate is to contribute to the reduction
in domestic violence generally and domestic homicides in particular by:
o thoroughly reviewing all intimate partner and ex-partner homicides;
o identifying systemic issues, problems, gaps or shortcomings of
each case and making recommendations to address these
concerns;
o creating and maintaining a comprehensive database about the
perpetrators and victims of domestic violence fatalities and their
circumstances;
o helping identify trends, risk factors and patterns from the cases
reviewed in order to make recommendations for effective
intervention and prevention strategies;
8o reporting annually on domestic homicides to enhance public
understanding and awareness of the issues; and
o conducting and promoting research where appropriate.
To date, the Committee has reviewed 47 cases involving 75 deaths.xi
Women are the predominant victims in the cases reviewed by the DVDRC,
although children are increasingly the targets of abusive men, who kill them in
retaliation against their wife or ex-wife. As stated in the 2006 Report, there were
148 “domestic violence” homicides in Ontario between 2002 and 2005, with 99
women victims, 9 child victims and 48 male deaths, 41 of which were perpetrator
suicides/deaths by law enforcement. Women are the victims and men the
perpetrators in 95 percent of the cases.xii
While each report is unique and reflects the realities of the deaths it has
reviewed, all four reports note a common and disturbing reality, which is
summarized in the opening pages of the 2004 Report:
An important concern to the DVDRC as a result of our review is the extent
to which these homicides appear both predictable and preventable based
on an analysis of well-known risk factors. . . . In the majority of cases
reviewed, ten or more risk factors associated with potentially lethal
violence were present in the circumstances.xiii
The DVDRC consistently identifies key trends or factors present in the homicides
it reviews:
prior history of violence (92%)
actual or pending separation (85%)
escalation of violence (77%)
prior attempts to isolate the victim (62%)
prior threats to kill victim or himself (46%)
As well as analyzing each homicide in detail and identifying trends and factors,
the reports include a number of recommendations grouped into three categories:
suggestions to improve awareness about violence against women
through training for professionals and public education campaigns
strategies to improve on assessment and intervention
the need for increased resources
The DVDRC has provided many important recommendations for change, as
have the three inquests held into the murders of women by their intimate
partners.xiv In particular, the reports speak to the importance of collaborative
community-based approaches to ensure early identification and intervention in
cases of woman abuse, especially high-risk cases.
9An Overview of Past Law Reform
Over the past 20 years, Canada and Ontario have instituted a number of
important measures intended to improve the response to violence against
women, including:
¾ mandatory charging policies in cases of spousal violence, introduced
across Canada in the early to mid 1980s, took the responsibility of
deciding whether or not to lay charges away from the victim and gave it
to the police. As a result, the rate of charging increased significantly;
¾ specialized Domestic Violence Courts were introduced in many parts
of the province
¾ the creation of the Victim/Witness Assistance Program (VWAP)
provided important support for victims of domestic and sexual violence
who are involved with the criminal court process
¾ amendments to many of the sexual assault provisions in the Criminal
Code made it illegal for men to rape their wives, clarified the issue of
consent, limited the accused’s access to the private records of the
victim and eliminated the defense of intoxication
Unfortunately, in some cases, the outcomes of these well-intentioned measures
have proven to be negative.
For instance, despite the positive intentions of policymakers, mandatory charging
policies have not helped all women. Many women do not want their partners
charged criminally – they may depend on them financially, may want to try to
effect a reconciliation or may fear increased violence if he is charged. Immigrant
women may be concerned their spouse will be deported if he is charged with a
criminal offence. Racialized women report differential treatment for themselves
as victims and for their abusers, if they are men of colour. Aboriginal women
have had very negative experiences with mandatory charging.
For some women, mandatory charging policies have led to them being charged if
the police officer has not taken the time to conduct a thorough investigation to
determine who the primary aggressor is over the life of the relationship.
One of the most challenging and controversial legislative changes in the area of
violence against women has been the amendments to child protection provisions
across the country. While there is little or no argument with the contention that
children who witness violence in the home are affected negatively as a result,
there is considerable disagreement about what to do about it.
Between 1998 and 2000, child protection authorities experienced a 318%
increase in reported child abuse, primarily because of child exposure to woman
abuse. This, in turn, led to a decrease in the numbers of women with children
who came to battered women’s shelters for safety and support.xv Furthermore,
child protection involvement has tended to focus on holding the abused woman
accountable for “failing to protect” her children, while largely ignoring the
10perpetrator. Neither of these outcomes is effective in keeping women and
children safe.
In 2007, the tool used by child protection workers to determine the appropriate
response (the Eligibility Spectrum) was revised to state that exposure to woman
abuse alone should not be defined as requiring a child protection response, but
rather that the presence of woman abuse in the home should be considered a
risk factor among others.
This new “differential” response also includes an increased focus on holding the
perpetrator, rather than the mother, responsible and accountable.
While both of the above changes offer positive possibilities, other amendments in
2006 encourage the use of mediation both before and during court proceedings.
This is not generally appropriate in woman abuse cases because of power
differences between the parties.
Similarly, the focus on family-centred conferencing must also be approached with
extreme caution in woman abuse cases out of concern for the woman’s safety.
Recent Law Reform Initiatives
In February 2006, the provincial government passed two important amendments
to existing legislation, both of which will have an immediate and significant
positive impact on women who are leaving abusive relationships.
i. Children’s Law Reform Act
Custody and access decisions in Ontario, as well as in the rest of Canada,
are made using the “best interests of the child test.” The factors to be
considered are listed in the Children’s Law Reform Act (CLRA), a
provincial law. Until 2006, there was no requirement that woman abuse be
considered in custody and access cases. Women who wished to raise the
issue of their abuse within the context of a custody and access case had
to make the explicit argument that the abuse they were experiencing was
having a direct, demonstrable and negative impact on the children, which
often was difficult to do.
Amendments to the CLRA in February, 2006, changed this. Judges are
now required to consider acts of violence or abuse by anyone seeking
custody of a child. Importantly, the amendments also identify that acts
taken in self-defense or to protect another are not to be considered acts of
violence or abuse.
Evidence of the abuse or violence must meet the civil standard (on a
balance of probabilities) rather than the criminal standard (beyond a
reasonable doubt). For example, criminal charges would not have to have
been laid for a woman to argue successfully in a custody case in family
11court that her husband’s abuse of her was a factor to be considered. She
would, however, have to have some evidence beyond a simple statement
that she had been abused.
Coupled with a 2005 Ontario Court of Appeal rulingxvi that joint custody is
not appropriate in cases where the parents cannot communicate, these
amendments to the CLRA will help ensure more appropriate outcomes for
women and children who leave abusive situations.
ii. Arbitration Act
The Arbitration Act governs the private arbitration of legal disputes,
including family law disputes, in Ontario. In 2003, concerns were raised
about the use of religious laws in the arbitration of family law, particularly
the impact on women’s equality rights.
The Arbitration Act was amended in 2006 to prohibit the use of religious or
any other private system of law in the arbitration of family law disputes.
Only Canadian law can be used, if the arbitration is to be legally binding
and enforceable. Ontarians are free to consult with and get support and
guidance from their religious leaders, if they choose to do so, but any legal
agreement must be based only on Canadian public law (Family Law Act,
Children’s Law Reform Act, etc.)
Regulations to govern arbitration in Ontario under this new regime are
now in place. A community outreach and education campaign to help
women know what Canadian law offers them and what their rights are
under Canadian law is expected to be completed in Fall 2008.
Public Policy Initiatives
Domestic Violence Action Plan
In December 2004, Premier Dalton McGuinty announced his government’s
Domestic Violence Action Plan (DVAP), which he described as a “long-term,
comprehensive and collaborative approach” to preventing violence against
women and improving supports for women and children when it does happen.
The DVAP, a four-year plan, is an important piece of public policy for a number of
reasons. First, it shows leadership at the highest provincial level. Second, the
Premier clearly identifies the issue as one of violence against women and makes
the connection between this violence and women’s inequality. Third, the plan
encourages a community-based, collaborative approach to both ending violence
against women and providing support to women and children who have
experienced violence.
The Plan is based on a number of principles:
the right to safety on the part of all women
working for women’s equality
12 the role of public leadership
sharing responsibility to address violence against women
holding abusers accountable for their actions
providing a holistic response
bringing a balanced approach
monitoring progress
The DVAP focuses on five areas where it is committed to making change. The
legal response commitments are of the greatest interest to this project, but all are
of importance.
1. Community-based supports for victims: This includes increasing funding to
community counseling services, transitional housing for women, social housing,
interpretation services, community coordinating committees and community-
based sexual assault centres.
2. Early identification and intervention: This includes training for professionals
and service-providers, the development of expert training advisory panels, a
provincial conference on domestic violence held in the fall of 2005 and
development of a clearinghouse of resources and programs.
3. Violence Prevention: A four-year, public education and prevention campaign
will target young people as well as the public at large in an effort to end violence
against women and girls.
4. Legal Response: There are a number of initiatives aimed at making both the
criminal and family law responses to violence against women more effective.
These include amendments to provincial custody and access legislation,
increased funding to Partner Assault Response Programs (PARS), changes to
the present family court restraining order system, increasing coordination
between the family and criminal court systems, expanding the bail safety pilot
programs (see below for details), working with the federal government to improve
funding for family law legal aid, working with stakeholders to examine other
models to better support abused women in family law disputes, using community
legal education publications to increase awareness of family law, domestic
violence and civil rights, encouraging the federal government to retain the
concepts of custody and access in the Divorce Act and instituting domestic
violence training for judges
5. Access to French Language Services: A French-language services strategic
plan is to be developed, which will include increased funding for French language
sexual assault centers, development of a French-language component of the
public education campaign and training for French-language professionals.
One of the strongest threads running through the entire Domestic Violence
Action Plan is a commitment at the provincial government level to supporting and
expanding community-based, collaborative approaches to both ending violence
against women and providing supports and services to those who experience it.
This commitment provides a strong foundation on which communities can build
their strategies for addressing this issue.
13Bail Safety Pilot Program
This program brings the victim, Victim/Witness Assistance Program (V/WAP), the
police and the Crown together to work collaboratively at the bail stage of a
criminal case where there has been partner abuse.
Currently running as a pilot in nine Ontario communities, the program recognizes
that the way in which bail has been handled in partner abuse cases in the past
has often left the victim exposed to ongoing, high risk of more serious harm or
even death. It is committed to allowing victim input at the bail hearing as well as
to offering victims access to support immediately upon charges being laid.
VWAP’s role in the program is to have immediate contact with the victim and to
conduct an in-depth interview to gather her input with respect to appropriate bail
arrangements. The VWAP worker also discusses safety planning with the victim,
introduces her to the court process and provides referrals to community agencies
for counseling and support.
The role of the police is to participate in the in-depth interview with the victim and
to complete a “risk factor checklist” which will support making appropriate bail
recommendations. The police will obtain past occurrence reports, prior charges,
prepare a complete Crown package and lay additional charges when required, as
well as liaise with relevant community partners.
The Crown’s role is to review and screen the Crown package and, if available,
conduct the bail hearing using information gathered during the in-depth interview
conducted with the victim by V/WAP and the police.
Evaluation of the first three pilot projects is positive and a report is expected in
the near future.
Neighbours, Friends and Families
In June 2006, the provincial government launched a province-wide campaign to
help the public recognize the early signs of woman abuse and know how to help.
The Neighbours, Friends and Families campaign (NFF) provides information in
pamphlet form, a series of public service announcements, posters, wallet cards
and a website.xvii The campaign is intended to provide communities with
information about how to:
recognize the warning signs of woman abuse
support women and other members of the community who are
affected by woman abuse
find supportive resources in the community
look for opportunities to promote and work collaboratively on the
Aboriginal and Francophone communities’ campaigns.
14As stated on the NFF website:
The Neighbours, Friends and Families campaign is based on principles of
community organization and recognizes that communities have the assets,
strengths, natural leaders and untapped talent to greatly impact change, growth
and restoration in their communities.
15THE FOCUS GROUPS
Focus groups were held with a variety of stakeholders – abused women,
community support workers, community legal workers and lawyers -- to gather
experiential data from those who know most about unrepresented abused
women in family court.
All of these individuals were also asked to complete a detailed questionnaire to
provide demographic and statistical data as well as qualitative information.
In addition, one on one interviews were conducted with family court judges.
This section of the report summarizes the data gathered from all these sources.
Women Survivors:
Note: For many women, the abuse continued or even escalated after separation.
In particular, there was a continuation of stalking type activities such as
jealous/controlling and following behaviours. Repeated unwanted telephone calls
actually increased post-separation. While just under 50% of women (46%)
reported that their ex-partner’s behaviour made them fear for their lives before
they separated, this number increased to 54% who reported this fear after
separation.
Any consideration of the needs of abused women in family court must bear
in mind the reality that more than half of them are in fear for their lives. This
has a profound impact on their ability to participate in the process at all, let
alone to do so effectively and without adequate legal representation.
Three focus groups were held with abused women who have been involved with
the family court without legal representation. Women were first given the
opportunity to talk generally about their experiences and then were asked to
focus their comments on specific questions about their lack of legal
representation, their perceptions about its impact on the outcomes of their cases,
the difficulties they encountered in handling their cases and services they turned
to for assistance and support. They also completed a questionnaire.
What Women Say:
We think women’s own voices are the most powerful way to understand the
impact on them of dealing with family court without a lawyer. Their words appear
throughout this report, along with the words of workers, lawyers and judges.
Here, though, are some short comments made by women when they were asked
what it was like to go to court without a lawyer.
16Women’s Voices
Intimidation, overwhelming, hard to focus, lack of confidence, talked down to, not
given credibility, very rude people at court, feel stupid, frustrated, tossed around,
discouraged, kills self-esteem, weak, defeated, re-victimized
Betrayed because I was robbed of time to spend with my children.
It’s abusive all over again.
I just wanted to curl up into a ball and sleep.
Legal representation:
The vast majority of women – 84% --reported that they had started out their case
with legal representation but had lost it before their case was completed, others
had never had legal representation and still others had representation at some
times and not at others.
Thirty percent of the women were without legal representation because they did
not qualify for Legal Aid, despite the fact that, for the women involved in this
study, their average household income fell from $75,000 before separation to
$22,500 after.
Almost half of the women (49%) were without legal representation for strictly
financial reasons:
¾ did not qualify for legal aid
¾ ran out of legal aid because of length and complexity of case
¾ ran out of money for privately retained lawyer because of length and
complexity of case
Another 6% of women reported that they were without legal representation
because they had been unable to find a lawyer who understood their issues.
More than one-tenth (12%) of the women were unrepresented when they went
into court because the emergency nature of their situation did not allow them
enough time to get a lawyer.
Women’s Voices
The lawyers always win. They always get paid and the kids always lose.
I could not afford her. I just didn’t have the support and so I decided to go it on
my own and I would stay up all hours of the night working on it because I had no
other choice.
17Legal Aid Ontario (LAO):
Forty percent of the women in the study were not aware of Legal Aid Ontario’s
eligibility requirements, which may have had an impact on whether or not they
even applied --of the 23% who did not apply, half gave as their reason “I didn’t
think I would quality.”
Many women expressed high levels of frustration with LAO’s financial eligibility
requirements and with the small number of hours that appear on most
certificates.
Women also told us that they think they should be allowed to hire a lawyer on a
LAO certificate even if they have seen that lawyer at the FLIC or as Duty
Counsel. They feel their choice of lawyers, already limited because so few take
legal aid clients, is reduced to almost none if these lawyers are excluded.
Women’s Voices
You want me to sell everything that I own before I get it . . . How are we
supposed to get ahead if you are putting us right in where we are locked, we’re
stuck. That makes absolutely no sense to me, because it’s a vicious circle going,
and there’s no break and there’s no way out as far as I’m concerned.
One day I went down there [LAO office] in a panic and they said there’s more
people in front of you and we won’t be able to see you today and at that time I
waited a few hours and they said the workers are leaving for the day so you will
have to come back again because it’s a first come first served basis. It took a lot
of courage to go in there because everyone is looking at you wondering what you
are there for.
I don’t qualify for legal aid because I make too much money and on paper it looks
like a lot of money but when you’re not getting child support and you’re paying
the mortgage and everything else it’s not a lot.
Family Court and Community Services:
Women without legal representation rely on a variety of court-related services to
assist them with their cases. Unfortunately, the experiences of the women in this
study report less than positive experiences with many of those services:
¾ while 70% used the Family Law Information Centre at the family
courthouse, only 44% found this helpful
¾ 73% used duty counsel lawyers, but only 38% found it helpful
¾ 46% used mediation services, with just 23% finding it helpful
¾ 64% used Legal Aid Ontario’s 2-hour legal advice certificates; 40%
found this helpful
18Women’s experiences with community services were more positive:
¾ all of the 74% of women who used Luke’s Place to assist them found it
to be helpful
¾ all of the 48% of women who worked with shelter advocates found that
to be helpful
Not surprisingly, because their experiences with community services were so
positive, women wanted to see a bigger role for them in family court.
Women’s Voices
You have to go back and stand in line [at the FLIC office] for two hours and then
when it’s lunch, you have to go somewhere else and wait while they are eating
lunch and then come back and you can only file at 2 o’clock a motion and it’s just
really confusing.
I don’t understand why it has to be a legal person . . . she [advocate] could
probably articulate [my case] better than I could because I am in the room with a
guy who abused me and the sheer presence of him in the room means I can’t
think normally.
Difficulties Encountered:
The vast majority of women told us their greatest difficulties were: not
understanding the procedure (84.6%), dealing with their abusive ex-partner
and/or his lawyer (80.8%) and the paperwork (76.9%).
Women also told us how difficult it was dealing with the judges, who often did not
seem to understand the realities of violence or how hard it was to come into court
without a lawyer.
Women’s Voices
I’m fairly well educated and if I can’t fill out these forms, I can’t imagine [how]
others [do.]
One of the hardest parts of not having someone stand beside you is he’s across
the room and he’s got his lawyer and you’re standing there by yourself and you
feel like you have nobody with you and you’re intimidated.
[T]hat’s what they [the abuser] do and they bully and they bully and they bully
until you will break.
The cultural awareness and religious sensitivity of the judges were amazingly
low.
19Then the judge says you have to call a motion. For the love of God, if I have to
call another motion, I might as well bring my sleeping bag. . . what motion do I
bring, what motion do I need for abuse, what motion do I need for this and that
and the other thing? Like, honestly, I’ll be on their doorstep forever.
I looked him [the judge] right in the eyes and said I’m not a lawyer. I’m not duty
counsel. I’m not him. I am me and I don’t understand this. I don’t understand your
language. . . . Your Honour, with all respect to you, have you ever tried to go and
file information and tried to get information from the family information centre?
Challenges/Barriers:
Women reported a number of challenges in working through their family court
experience without legal representation. Perhaps most notably, 80% of them told
us that they feared they would not be believed and their abuse would not be
taken seriously.
Seventy-three percent identified “feeling less powerful than the abuser” as a
barrier during their time in family court. Sixty-five percent said they had the
feeling they were supposed to be compliant and not challenge people.
Other challenges were also reported:
¾ difficulty accessing legal help (65%)
¾ not enough supports (65%)
¾ feeling isolated (57%)
¾ fears about losing their children, to their ex and/or others (46 – 69%)
Women from marginalized communities – especially those from other cultures --
experienced even more barriers, particularly within their own communities.
Women’s Voices
You left an abusive situation and your confidence level is certainly not at its
highest and you’re going to these people to seek help and you’re reaching out
and then when they come and say to you there is nothing they can do. So you
suck it all up and minimize what’s happened. I can see why so many women will
go back.
I didn’t have any family and the community kept us very sheltered. Because it is
not just the mainstream I am dealing with. It’s also my cultural aspects and
perceived ideas of the mainstream about certain cultures.
And what’s difficult is when you’re doing this by yourself, you’re writing a book
and they don’t want to read a book. They only want to read two paragraphs and
that’s pretty much it. So you feel that you aren’t heard.
20I did not even wear pants at the time or skirts and I had my Pakistani clothes and
a big wrap and I went to court with those things on and here he is in a black-tie
suit and clean-shaven and I didn’t have any idea about how I should have
dressed and what I should have looked like in front of the judge.
Family law says you are entitled to represent yourself but you are looked down
upon and frowned upon when you decide to do so. I really believe it is the money
aspect of it. Because you are not paying into the system, therefore you are not
getting what you are entitled to.
Family Law Issues:
Not surprisingly, the vast majority of women (88.9%) listed custody and access
as the number one issue they were dealing with in family court. This was
followed by child support (70.4%), with restraining orders the third most common
issue (59.3%). Of course, many women were dealing with more than one of
these issues at the same time.
Other research clearly establishes the volatility of these issues. In particular, the
2004 report of the Domestic Violence Death Review Committee noted the
presence of custody and access disputes in 44% of the homicides it reviewed
that year.
Outcomes:
It is difficult, if not impossible, to make absolute connections between the
outcomes women achieved and the presence or absence of legal representation,
because there are many other variables that play a role. However, we can report
that:
¾ 72% of the women received joint custody orders
¾ 68% were able to obtain child support orders
¾ 58% received restraining orders
Every woman with joint custody (100%) told us she was not happy with this
outcome. This was largely because of ongoing harassment by the abuser.
Joint custody orders are like an invitation to harass because the parents are
required to consult on all decisions affecting the children. Even if the children live
primarily with the mother and even if the father’s contact with them is superficial,
he can use the joint custody order to insist that the mother discuss all schooling,
recreational, religious, health and other matters with him. Abusive men often
refuse to consent to plans the mother and child wish to make, not because they
oppose the plan, but because it is a way to harass and control the mother. For
example, an abusive man might insist the child participate in baseball if the
mother has proposed soccer or might refuse to allow the child to attend French
Immersion classes or to go on a school trip just to make sure both the mother
and child know who is still in charge – him. Abusers often bring minor custody
and access disagreements back into court over and over again. This has the
21effect often of wearing the mother down, who has to hire a lawyer again and
again or take time off work to represent herself and who becomes exhausted by
the ongoing harassment and intimidation. Once again, the abuser is able to keep
control.
It is to be hoped that joint custody orders will become less common with the
recent change to best interests of the child test in the Children’s Law Reform Act
requiring courts to consider family violence in custody and access cases.
Women’s Voices
When it came time for trial. I was out of money. I ran out of money. I simply ran
out of money so I went into settlement for status quo. Joint custody we had to
keep just because I didn’t have the money.
Post-Court Issues:
Women reported ongoing difficulties with access:
¾ 73% feared their ex-partner would be abusive with the children during
the visits
¾ 74% felt their ex-partners used access visits as an opportunity to
criticize them to the children
¾ 65% reported continuous conflict about child-related issues
¾ 65% said they felt unsafe at access exchanges
¾ 65% thought their ex-partners used access to get information about
them from the children
¾ 60% have to force their children go on access visits, even when they
have said they don’t want to go and are crying
¾ more than half (52%) of ex-partners change access arrangements
without consulting with the mothers
¾ just under half (48%) of ex-partners do not show up for access visits
when the children are expecting them
As reflected in the statistics above, those women who had completed the
family court process, especially those with children, told us in no uncertain
terms that their difficulties with their abusive ex-partners did not end with
the end of family court proceedings. The abuser who had learned how to
change abuse within the relationship into legal bullying then learned how
to become an abuser through his access to the children. For many
women, it appeared no end was in sight as long as the children remained
young and at home.
Women’s Voices
It just comes down to this is the law that he must see them at all costs.
22Positive Experiences:
Despite the serious challenges and barriers experienced by virtually all the
women at times throughout their family law case, some women reported to us
that there were positive elements as well. For these women, there was a sense
of empowerment in telling their own stories.
Women’s Voices
The legal system made me feel that I couldn’t [do it herself] but I always knew I
could. There were a lot of times I felt like I was going mad, but it’s the legal
system.
I think I’ve accomplished more on my own than with any lawyer because I know
the case and because I have my voice back.
Community Advocates
Seventeen community advocates participated in a focus group and completed
questionnaires related to the family court experiences of the women with whom
they worked. Participants were solicted from the women’s shelters, counselling
agencies, multicultural community services, rural outreach agencies, community
mental health agencies, agencies serving women with disabilities and others.xviii
Legal Situations of Clients:
For almost two-thirds (64%) of advocates, abused women make up all or almost
all of their work. Most of those clients are involved with family court proceedings.
As with the women, most advocates identified custody and access and
restraining orders as the two most pressing legal issues for their clients.
Legal Representation:
Many advocates have clients who do not have a lawyer:
¾ for 30% of advocates, 10 – 25% of their clients are unrepresented
¾ for 24%, between 25 and 50% are in this situation
¾ for 23%, more than 50% of their clients have no legal representation
Advocates identified a number of barriers to women finding legal representation:
¾ a lack of lawyers who accept legal aid certificates
¾ a lack of lawyers who can be retained quickly enough to handle
emergency situations
¾ coordinating the lawyer’s time with the interpreter’s time
23Legal Aid Ontario:
Advocates saw many aspects of LAO as a critical barrier for women – the
application process, the criteria and LAO-supported services such as the two-
hour advice certificate. In particular, they told us:
¾ the amount of time on women’s LAO certificates is too low for the
complexity of family law cases involving woman abuse
¾ the legal aid office is too open for women to feel safe and private
¾ the financial criteria are so restrictive that many women who need legal
aid assistance do not qualify
¾ legal aid for family law is under-funded generally
¾ the legal aid appeal process is too long
More than 60% of advocates told us that their clients did not qualify for Legal Aid
but could not afford to pay for a lawyer themselves.
As with almost every other group of stakeholders, advocates identified as a
barrier to women the fact that they cannot hire a lawyer on a LAO certificate if
they have seen that lawyer at the FLIC or as Duty Counsel.
Advocates’ Voices
When we’ve gone with women it’s rarely ever been two hours. Especially when
women go on their own, they come back and say he [the lawyer] took my two-
hour form and I think he’s going to be my lawyer but it was only a 20-minute
appointment and he rushed through and he told me he’s done this a million times
and just to leave it with him. So they are left completely in the dark not knowing
what’s going to happen, what’s coming next and when their next anything is.
Family Court and Community Services:
Perhaps the most troubling information we heard from advocates was that many
women still don’t know what services are available to them.
Advocates’ Voices
There are pockets of women who aren’t aware or are not educated or
knowledgeable of the fact that there are support services and agencies in place
to help them. And it really hurts me when I hear from someone that they had no
idea that there was a place to help.
Referring Women:
It was clear that community advocates do their best to assist unrepresented
women who come to them for help. More than 80% told us they assist the
woman themselves by discussing her case with her and providing emotional
support and/or by referring them to Luke’s Place and/or to LAO to apply for legal
aid.
24Approximately 70% send unrepresented women to the Family Law Information
Centre, slightly more than 60% provide women with a two-hour legal advice
certificate and slightly less than 60% refer them to duty counsel.
Difficulties Encountered:
All advocates identified that understanding the family court procedure was a
significant difficulty for unrepresented women. Following closely were such
difficulties as feeling overwhelmed by the complexity and the paperwork and
having an inadequate knowledge of the law (all at 88%), knowing what evidence
about abuse to submit and how (82%) and dealing with the ex-partner and/or his
lawyer (76%).
Advocates also reported that their clients felt frustrated by the many motions
brought by their ex-partners, and felt emotionally and financially drained by their
family court proceeding.
There was concern expressed by advocates that unrepresented women concede
on important legal issues too quickly because they don’t understand the issues,
the process or their rights.
In the opinion of advocates, unrepresented women had many non-legal
difficulties during their family court experience, including dealing with ongoing
harassment and control by the abusive ex-partner and threats that he will get
custody of the children (76.5% saw each of these problems “often”), fearing they
won’t be believed (“often” for 70% of women) and fearing for the safety of
themselves and/or their children (“often” for 70% of women).
Advocates’ Voices
The most common concern we have when they’re unrepresented or
underrepresented is [when they] concede on, first, its property, that’s the first
thing that goes, they give up on rights to property and use that as bargaining.
Then it’s conceding on access to hopefully get primary care or custody. If they
were represented they would not have to concede on that, because if there is
any kind of documentation that this is either high conflict or abusive the case law
is that they get custody. But women don’t understand that or don’t show their
evidence properly because they are unrepresented.
It keeps coming back to the fact that if the person who is abusing the system is
not being held accountable there are so many loopholes in the system that allow
him to get away with it.
25Women from Marginalized Communities:
Advocates were asked to comment on the experiences of women from various
marginalized communities – rural women, immigrant, refugee and non-status
women, Aboriginal women and women with disabilities and Deaf women.
Advocates told us that rural women often felt they did not have access to
enough support services and resources (70%) and had difficulty with
transportation due to their geographic location (76%). They also felt isolated
((64%).
According to advocates, immigrant, refugee and non status women also faced
unique barriers: language (92%), fears that the partner would remove the
children from Canada (78%), isolation (71%), accessing culturally appropriate
services (64%) and concern about their immigration status (57%), among others.
We also heard that it is often difficult to coordinate the schedules of lawyers and
interpreters for women who require this.
For advocates working with Aboriginal women, not enough services (75%),
transportation (75%), lack of trust in the police (87%), lack of services that
understood traditional ways of healing (87%) and discrimination (87%) were key
challenges.
Those working with women with disabilities and Deaf women told us that the
most difficult experience for these women is leaving the abuser because he is
also her caregiver (91%).
Post Court Issues
We heard from advocates that many women (76%) continue to experience
ongoing harassment and difficulties post-court when the abusive ex-partner has
access to the children.
Community Legal Workers
Fifteen community legal workers participated in a focus group and completed
questionnaires related to the family court experiences of the women with whom
they worked. Participants were solicited from a number of legal services within
the community, including child protection, court workers and professionals
working in court support programs.
Legal Situations of Clients:
For 46% of legal workers, women who have experienced abuse make up at least
50% of their workload. Surprisingly, 20% reported not knowing whether their
clients had experienced abuse.
Some work with men who have perpetrated abuse – for one-third, these clients
make up at least 50% of their workload.
26The vast majority of them (93%) felt that woman abuse should be a relevant
factor in family court proceedings.
Custody and access and restraining orders emerged once again as the two most
pressing family law issues for most women who had experienced abuse.
Legal Representation:
Many clients of legal workers do not have legal representation:
¾ for 26% of workers, this is true for between 25% and 50% of their
clients
¾ for 26%, more than 75% of their clients do not have a lawyer
Legal Aid Ontario:
More than three-quarters (77%) of workers reported that their clients were
unrepresented in family court because they did not qualify for legal aid and could
not afford to pay for a lawyer themselves.
Workers saw the lack of funding as a significant barrier for women, but also
identified the financial eligibility criteria as problematic. They told us that women
worry about running into their abuser at the legal aid office when they go there to
apply for a certificate.
These workers, like other stakeholders, identified the fact that women cannot hire
a lawyer on a LAO certificate if they have seen that lawyer at the FLIC or as Duty
Counsel as a barrier.
Legal Workers’ Voices
Some women haven’t even tried to go for legal help because they are
overwhelmed, stressed out of their brains and it’s really difficult for them.
Family Court Services:
Legal workers had comments about many different court and court-related
services.
They commented on the limited resources generally available at family court,
which makes it very difficult to meet all of the needs of litigants.
Shared waiting rooms are inappropriate for women who must sometimes wait for
long periods of time in close proximity to their abuser and/or his family and
friends.
The legal workers had much to say about the Family Law Information Centre.
The Durham FLIC has the highest number of users in the province at
27approximately 17,000 people. Its services were seen as very important, but a
number of workers felt that women did not get enough time (just 10 – 15 minutes)
with the FLIC staff.
Workers commented that the use of staff duty counsel made for better, more
consistent service for women.
Difficulties Encountered:
While unrepresented women face many difficulties in the opinion of their legal
workers, once again, a lack of understanding of the procedure (80%) and the
paperwork (73%) consistently rank as the most frequent challenges. High
numbers of workers also report dealing with the ex-partner and/or his lawyer
(67%) and inadequate knowledge of the law (60%) as significant difficulties.
Other common difficulties included:
¾ dealing with ongoing harassment and control by the ex-partner (“often”
for 83%)
¾ women’s fear for the safety of themselves and/or their children (“often”
for 84%)
¾ dealing with threats from the ex-partner that he will get custody of the
children (“often” for 77%)
Both the gaps and overlaps between family and criminal court were seen as
difficulties for everyone, but especially for women who did not have legal
representation. In particular, workers commented on the lack of communication
between the two systems.
Workers also told us that rotating judges are a problem because women have to
tell their story again and again to different people and no one judge becomes
familiar with the case. They pointed out that the four family court judges in
Durham are very good.
Legal Workers’ Voices
Women should not have to be responsible for making sure the systems [criminal
and family] communicate.
Women from Marginalized Communities:
Legal workers told us that rural women do not have enough services and
supports (66%), that they feel isolated (58%) and that they have concerns about
their partner’s access to firearms (58%).
Immigrant, refugee and non status women, according to the legal workers,
experience language barriers (77%), have difficulty finding an effective translator
(92%) and fear that their ex-partner will take the children out of the country
(84%).
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